8.  It would appear from the case file that the salient fact in the domestic proceedings was the applicant’s association with the mujahedin in Bosnia and Herzegovina (“BH”)[1]. The term mujahedin has been widely used to refer to foreigners – mainly from the Arab world – who came to BH during the war in support of Bosnian Muslims[2]. However, the same term has been used to describe local Muslims who joined the foreign mujahedin, endorsed their ideology and adjusted to their way of dressing. The phenomenon has been explained by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in Hadžihasanović and Kubura, IT-01-47-T, §§ 411‑18, 15 March 2006, and Delić, IT-04-83-T, §§ 166-199, 15 September 2008, as follows.
9.  The first foreign mujahedin arrived in BH in the summer of 1992 via Croatia and with the assistance of the Croatian authorities. It would appear that their arrival was welcomed by the BH authorities. While the presence of at least some foreign mujahedin seems to have been motivated by a desire to provide humanitarian assistance to the Bosnian Muslim population, most of them actively supported the military struggle against the Bosnian Muslims’ adversaries, ready to conduct a jihad or “holy war”. As stated by Ali Hamad, an ICTY witness of Bahraini origin who came to BH in 1992, some of the mujahedin were members of al-Qaeda who had the aim of “creating a base that would allow them to increase their area of operations”. Some of them also came to perform missionary work.
10.  Upon arrival, foreign mujahedin settled in various locations and did not form a homogeneous entity. Towards the end of 1992, Bosnian Muslims started to join the foreign mujahedin. The locals were provided with military training and participated in combat action. They were also given religious instruction. A number of groups comprising foreign and/or local mujahedin were active. Notwithstanding instances of participation in combat alongside each other, it appears that these groups were anxious to maintain their distinct identities. There were religious and ideological differences between them, which resulted in occasional violent clashes.
11.  On 13 August 1993 the foreign mujahedin were organised into a unit within the local ARBH (Army of the Republic of Bosnia and Herzegovina) forces[3]. The unit, named “El Mujahedin”, was based in Zenica. Following its establishment, the unit significantly grew in size. By 1995, it consisted of around 1,000 fighters. Although the original idea had been to replenish the unit with foreign mujahedin only, locals soon outnumbered its foreign members. The factors that motivated locals to join it included: its stricter regimental discipline; a better degree of organisation; superior equipment and combat morale; its religious dedication; and material benefits. The unit received funds and assistance from many organisations and individuals from the Islamic world, including the Al-Haramain Islamic Foundation[4] and the Benevolence International Foundation[5]. The Islamic Cultural Institute in Milan provided logistical support.
12.  El Mujahedin had a number of features setting it apart from regular ARBH units. It was led by foreign mujahedin who were not appointed by the ARBH. At the top of the hierarchy was an emir, who has been described as the highest-ranking person within the unit. Abu Haris, a Libyan, was its first emir. In December 1993, he was succeeded by an Algerian, Abu Maali, who remained in that position until the end of the war. A different person from the emir, the military commander, headed the military council and was responsible for the conduct of combat operations. In 1993, this post was held by an Egyptian named Vahidin or Wahiuddin. After his death in October 1993, another Egyptian, Muatez, succeeded him. Muatez was killed in September 1995. The unit had a religious council, the shura, which was its supreme decision-making body. It consisted of approximately twenty prominent members of the unit, mostly of Arab origin. The emir was elected by and answerable to the shura. At the end of 1994, Sheikh Shaban joined the leadership of the unit. He was the head of the Islamic Cultural Institute in Milan and known to be an extremist who was well-connected with Islamic fundamentalists all over the world (the ICTY relied in that regard on a judgment of the Milan Criminal Court of 1 January 2006). He facilitated the recruitment of volunteers from Arab countries for the struggle in BH. Although Sheikh Shaban did not hold an official function within the unit, its members considered him to be the political authority and even the real emir within the unit. He could issue binding rulings (fatwa) and his authority was never challenged by the shura. Sheikh Shaban was killed, together with Abu Haris, at an HVO (Croatian Defence Council)[6] military checkpoint on 14 December 1995.
13.  The General Framework Agreement for Peace, which ended the war in BH, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. Article III of Annex 1A to that Agreement called for the withdrawal of all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces. In view of that, on 14 December 1995 the ARBH disbanded El Mujahedin and ordered its foreign members to leave the country by 10 January 1996. Despite initial resistance, the shura accepted that the unit be disbanded. It would appear that awards, such as the “Golden Lily”, were given to its members as an incentive for foreigners to leave. Members of the unit were also provided with ARBH certificates of service, which assisted its foreign members to acquire BH citizenship. Whereas most of the unit’s foreign members left BH, some of them (such as the present applicant) applied for BH citizenship and continue to live in BH to date.
14.  After the attacks of 11 September 2001, the official attitude towards foreign mujahedin changed dramatically. Many lost their BH citizenship or were deported from BH after being declared a threat to national security.
15.  The applicant was born in Syria in 1963.
16.  In 1983 he went to the then Socialist Federal Republic of Yugoslavia to pursue his studies. He first studied at Belgrade University, in Serbia, and then at Rijeka University, in Croatia.
17.  It would appear that the last time the applicant was in Syria was in January 1993. He stayed one month and obtained a new Syrian passport.
18.  In 1993, having returned from Syria, the applicant met a refugee from BH in Croatia. They were married in a Muslim wedding ceremony in 1993 and then in a civil ceremony in 1995 (the applicant had previously been married). They have three children together, born in 1994, 1997 and 1999. The applicant’s wife also has three children from her first marriage (her first husband was killed at the beginning of the war). The applicant has no children from his previous marriage.
19.  While it is certain that the applicant was a member of El Mujahedin, the ARBH unit described above, it is not clear for how long. According to a certificate issued to the applicant, his service in the ARBH lasted from May 1993 until December 1995, but this is not consistent with the applicant’s version of events. Neither is it clear when he obtained BH citizenship. He was first issued a national identification number on 15 April 1995 on the basis of a naturalisation decision of 22 November 1994 and again on 28 December 1995 on the basis of a naturalisation decision of 23 March 1992. However, the applicant claims that the naturalisation decision of 23 March 1992 did not exist. Indeed, it has never been delivered to him, despite his numerous requests.
20.  In the immediate aftermath of the war, the applicant acted as leader of a group of foreign mujahedin and their local supporters based in Bočinja. The group advocated the Saudi-inspired Wahhabi/Salafi[7] version of Islam. In his role as the group’s leader, he interrogated two local Serbs for a couple of hours in 1998. This led to his conviction for false imprisonment in May 2000 and a suspended prison sentence.
21.  On 14 November 2001 the relevant administrative authority quashed the naturalisation decision of 23 March 1992. On 7 June 2006 the Supreme Court of the Federation of BH[8] quashed that decision and remitted the case for reconsideration. On 9 January 2007 the relevant administrative authority quashed the naturalisation decisions of 23 March 1992 and 22 November 1994. They held that the applicant had acquired BH citizenship by means of fraudulent conduct, false information and concealment of relevant facts. As a result of this decision, the applicant became an unlawful resident in BH. On 5 April 2007 the State Court and on 4 October 2008 the Constitutional Court upheld the decision (see paragraph 27 below).
22.  On 19 April 2007 the applicant applied for a residence permit. On 18 May 2007 the Aliens Service rejected his application. It held, on the basis of confidential intelligence reports, that the applicant was a threat to national security. He was granted a period for voluntary departure of fifteen days. On 27 July 2007 the Ministry of Security, after having assessed the national security evidence, upheld that decision. On 21 January 2008 the State Court dismissed an application for judicial review. On 14 March 2008 another bench of the same court upheld that decision. On 4 October 2008 the Constitutional Court set aside the State Court’s decision of 14 March 2008 and remitted the case for a retrial (see paragraph 27 below).
23.  On 1 June 2007 the applicant claimed asylum. He maintained that he would be perceived by the Syrian authorities as a member of the outlawed Muslim Brotherhood (in view of his involvement in rallies organised by that organisation in the 1980s) or as an Islamist (given his association with the mujahedin movement advocating the Saudi-inspired Wahhabi/Salafi version of Islam). The applicant claimed that the Syrian authorities were aware of his activities in BH, as he had always been outspoken about them (for example, he had given a number of interviews to the Al Jazeera television channel and the Asharq Alawsat newspaper between 1996 and 2001). Those authorities had allegedly interviewed his father and brothers on several occasions in this connection and, furthermore, had held one of his brothers in detention for nine months because of his refusal to spy on the applicant. He referred to the situation of Muhammad Zammar, a mujahedin of Syrian origin, who had reportedly been tortured in Syria and sentenced to twelve years’ imprisonment for membership of the Muslim Brotherhood (although no proof of his membership in that organisation had been presented at trial), belonging to an organisation formed with the purpose of changing the economic or social structure of the state, carrying out activities that threatened the state or might damage its relationship with a foreign country and weakening national feeling and inciting sectarian strife. The applicant claimed that he might also be targeted because of his draft evasion. Given all the above and the general political and human rights situation in Syria, the applicant argued that his deportation to Syria would expose him to a risk of being subjected to ill-treatment. Lastly, he submitted that his deportation would be contrary to Article 8 of the Convention in view of his family situation.
24.  On 8 August 2007 the Asylum Service refused the asylum claim and granted the applicant a fifteen-day period for voluntary departure. It held that the applicant did not face a real risk of being subjected to ill-treatment given that he had never been a member of the Muslim Brotherhood (unlike Muhammad Zammar mentioned above). It further held that it had not been shown that he would be ill-treated solely because of his fighting with the foreign mujahedin in BH (in view of the fact that none of the parties to the war in BH were either an ally or an enemy of Syria) or because of his draft evasion. As regards the applicant’s allegations about his father and brothers, the Asylum Service rejected them as unsubstantiated. Lastly, the Asylum Service considered the Article 8 complaint to be irrelevant in an asylum case. On 21 January 2008 the State Court upheld that decision. On 4 October 2008 the Constitutional Court set aside the part of the State Court’s decision concerning Article 8 and remitted it for a retrial. It upheld the remainder of that decision (see paragraph 27 below).
25.  On 29 January 2008 the Court decided to indicate to the Government that the applicant should not be expelled pending the final decision of the Constitutional Court in the applicant’s case (AP 1222/07) and for a period of at least seven days following notification of that decision (see paragraph 4 above).
26.  On 4 June 2008 the US Department of State edited its 2007 Country Report on Terrorism in BH, in which the applicant (known as Abu Hamza al-Suri) had been wrongly identified as convicted terrorist Abu Hamza al‑Masri (who had also fought with the foreign mujahedin in BH).
27.  On 4 October 2008 the Constitutional Court rendered its decision in the applicant’s case (AP 1222/07). It set aside the State Court’s decision of 14 March 2008 (see paragraph 22 above) and the State Court’s decision of 21 January 2008 in part (see paragraph 24 above). It upheld the remainder of the State Court’s decision of 21 January 2008 and the State Court’s decision of 5 April 2007 in its entirety (see paragraph 21 above).
28.  On 6 October 2008 the Aliens Service placed the applicant in an immigration centre on security grounds, pursuant to section 99(2)(b) of the Aliens Act 2008. On 10 October 2008 the State Court, after having assessed the national security evidence, upheld that decision. In his constitutional appeal, the applicant maintained that even if he indeed constituted a security threat, that factor would not be sufficient in itself to justify his detention (he relied on Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3; Guzzardi v. Italy, 6 November 1980, Series A no. 39; and Ciulla v. Italy, 22 February 1989, Series A no. 148). On 28 March 2009 the Constitutional Court held that the applicant’s custody was lawful and consistent with the Convention. The initial detention period was extended monthly on security grounds until February 2011 (see paragraph 32 below). All extension orders were upheld by the State Court and some of them also by the Constitutional Court (constitutional appeals concerning the remaining orders are pending).
29.  On 17 October 2008 Amnesty International, the Helsinki Committee in BH and Human Rights Watch called upon the BH authorities not to deport the applicant to Syria because of a serious risk of ill-treatment.
30.  Further to the Constitutional Court’s decision of 4 October 2008 (see paragraph 27 above), on 17 November 2008 the State Court quashed part of the Asylum Service’s decision of 8 August 2007 mentioned in paragraph 24 above and instructed that service to examine whether the indication of a period for voluntary departure was contrary to Article 8 of the Convention. On 6 March 2009 the Asylum Service held that the impugned measure was consistent with Article 8. On 17 August 2009 the State Court quashed that decision. On 17 September 2009 the Asylum Service again held that the impugned measure was consistent with Article 8. On 15 December 2009 the State Court quashed that decision. On 15 January 2010 the Asylum Service again held that the impugned measure was consistent with Article 8. On 17 December 2010 the State Court upheld that decision. It emphasised that the indication of a period for voluntary departure should not be confused with a deportation order and that the issue of whether the applicant’s departure would be contrary to Article 8 should more appropriately be examined within the context of deportation proceedings. It would appear that a constitutional appeal against that decision is pending.
31.  Further to the Constitutional Court’s decision of 4 October 2008 (see paragraph 27 above), on 17 November 2008 the State Court assessed the national security evidence and upheld the Ministry of Security’s decision of 27 July 2007 mentioned in paragraph 22 above. It relied on the applicant’s conviction of May 2000 (see paragraph 20 above), his public threats against State authorities, his standing in the mujahedin community which allowed him to issue a binding ruling (fatwa), his lectures at a mosque in Sokolović kolonija, a Sarajevo suburb, advocating the Saudi-inspired Wahhabi/Salafi version of Islam and his attempts to obtain ammunition illegally. It also took into account some secret evidence. Following a constitutional appeal, on 31 January 2009 the Constitutional Court ordered as an interim measure that the applicant should not be expelled pending the proceedings before the Constitutional Court. On 28 March 2009 the Constitutional Court quashed the State Court’s decision of 17 November 2008 and remitted the case for a retrial. It further ordered that its interim measure remain in force until the State Court had examined the application under Article 8 of the Convention. On 22 May 2009 the State Court quashed the first- and second-instance administrative decisions and remitted the case to the Aliens Service for reconsideration. On 17 June 2009 the Aliens Service rejected the application for a residence permit and granted the applicant a period for voluntary departure of fifteen days. On 27 July 2009 the Ministry of Security upheld that decision. On 23 December 2009, after having assessed the national security evidence, the State Court upheld that decision. It relied, among other things, on the fact that the applicant’s name appeared on a list of international criminals maintained by the International Criminal Police Organisation (INTERPOL). On 1 July 2010 another bench of the same court upheld that decision. It would appear that the applicant has lodged a constitutional appeal in that regard which is still pending.
32.  On 1 February 2011 the Aliens Service issued a deportation order: it decided to expel the applicant and to prohibit his re-entry for five years. On 2 March 2011 and 29 November 2011 the Ministry of Security and the State Court, respectively, upheld that decision. The applicant has ever since been detained with the intention of deportation pursuant to section 99(1)(a) of the Aliens Act 2008.
33.  On 15 March 2011 the Court decided to indicate to the Government that the applicant should not be expelled to Syria until further notice (see paragraph 7 above).